Vargas et al v. Pfizer Inc. et al

Filing 132

FIRST MEMORANDUM OF LAW in Opposition re: 130 MOTION to Strike Document No. 124 Supplemental Declaration of Paul A. Chin.. Document filed by Ralph Vargas. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Supplement Certificate of Service)(Chin, Paul)

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

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TABLE OF CONTENTS TABLE OF AUTHORITIES... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... PRELIMINARY STATEMENT ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ..... STATEMENT OF FACTS ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .. A. B. C. The Court' Order... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . s Defendant' additional evidence... ... ... ... ... ... ... ... ... ... ... .. s Chin' Declaration... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... s iii 1 2 2 3 4 5 5 5 6 6 6 7 9 10 10 10 13 13 14 14 15

LEGAL ARGUMENT ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .. .. POINT I A. B. POINT II A. B. C. POINT III A. B. POINT IV A. B. POINT V LEGAL STANDARD... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .. Local Rule 1.10 and Fed.R.Civ.P. 11 governs Chin' s Declaration... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... Defendant' burden of proof on summary judgment... ... ... ... s CHIN' DECLARATION SHOULD BE CONSIDERED S BY THIS COURT... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . Chin' Declaration must be assessed under Local Rule 1.10 and s Fed.R.Civ.P. 11... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .. Chin' Declaration contains facts based on personal knowledge s and admissible evidence... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . There is no reason to strike Chin' entire declaration... ... ... ... s DEFENDANT' ADDITIONAL EVIDENCE CASTS S DOUBT ON HIS CLAIM OF INDEPENDENT CREATION.. Defendant failed to follow the Court' Order... ... ... ... ... ... ... s The recreated Aparthenonia is not identical to the original Aparthenonia.............................................................................. REPP v. WEBER IS DIRECTLY CONTROLLING IN THIS CASE AND MUST BE FOLLOWED BY THIS COURT... ... Three governing legal principles of Repp v. Weber... ... ... ... .. Plaintiffs need not rebut Defendant' evidence of independent s creation... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .. THE COMPETING EXPERT EVIDENCE MUST RESOLVED BY A JURY... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...

CONCLUSION ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ..

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TABLE OF AUTHORITIES CASES Donahue v. Windsor Locks Board of Fire Commissioners, 834 F.2d 54 (2d Cir. 1987)... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... DeSimone v. J.P. Morgan/Chase Bank, No. 02 Civ. 7039, 2004 WL 2978011 (S.D.N.Y. Dec. 22, 2004)... ... ... .. Doe v. The National Board of Podiatric Medical Examiners, No. 03 Civ 4034, 2004 WL 912599 (S.D.N.Y. Apr. 29, 2004)... ... ... ... .. Gaste v. Kaiserman, 863 F.2d 1061 (2d Cir.1988)... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .. Levine v. McDonalds Corp., 735 F.Supp. 92 (S.D.N.Y. 1990)... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .. Morris v. Northrop Grumman Corp., 37 F.Supp.2d 556 (E.D.N.Y. 1999)... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .. Repp v. Webber, 132 F.3d 882 (2d Cir. 1997)... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .. Tufenkian Import/Export Ventures, Inc. v. Einstein Moojy, Inc., 338 F.3d 127 (2d Cir. 2003)... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... U.S. v. Private Sanitation Industry Association of Nassau/Suffolk, Inc., 44 F.3d 1082 (2d Cir. 1995)... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . Vargas v. Pfizer, 418 F.Supp.2d 369 (S.D.N.Y. 2005)... ... ... ... ... ... ... ... ... ... ... ... ... ... ... Vermont Teddy Bear Company, Inc. v. 1-800 Beargram Company, 373 F.3d 241 (2d Cir. 2004)... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . Zakre v. Norddeutsche Landesbank Girozentrale, 396 F.Supp. 483 (S.D.N.Y. 2005)... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... RULES Rule 11 of the Federal Rules of Civil Procedure Rule 56(e) of the Federal Rules of Civil Procedure Rule 1.10 of the Local Rules of the Southern & Eastern District of New York 14 9 9 15 14 9 6, 13-15 6 9 6 6 9

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1 PRELIMINARY STATEMENT Defendant' motion to strike ("Defendant' Motion") the supplemental s s declaration of Plaintiffs' attorney, Paul A. Chin, dated January 23, 2007 ("Chin' Decl.") s is nothing more than a ruse submitted for the sole purpose of allowing Defendant to reargue his motion for summary judgment ("Defendant' MSJ"). The true purpose of s Defendant' Motion is transparent given the fact that eleven of the twelve pages of s Defendant' memorandum of law in support of his motion to strike are dedicated to legal s arguments in support of Defendant' MSJ, while just three paragraphs are dedicated to s the alleged impropriety of Chin' Decl. Regardless of its designation or misdesignation, s Defendant' Motion is as legally insufficient as his motion for summary judgment and s both should be denied. Chin' Decl. is not an "affidavit" limited to the confines of Rule 56(e) of the s Federal Rules of Civil Procedure ("Fed.R.Civ.P."), but, instead, is a written statement executed by Plaintiffs' attorney which contains statements of fact based on: (i) Plaintiffs' attorney' personal knowledge; and (ii) the admissible evidence in this case. Therefore, s Chin' Decl. should not be stricken because it is proper under Rule 1.10 of the Local s Rules of the Southern & Eastern District Courts of New York and Fed.R.Civ.P. 11. Defendant' recycled legal arguments in support of his motion for summary s judgment demonstrate a profound misunderstanding of: (i) the Court' order requiring s Defendant to produce a "re-creation" of the infringing composition in this case ("Aparthenonia"); (ii) Defendant' burden on his motion for summary judgment; and s (iii) the controlling law in this Circuit regarding competing expert opinions on a motion for summary judgment.

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First, Defendant' failure to use the "precise equipment1," Defendant claims he s used to create the original Aparthenonia, in his attempt to recreate Aparthenonia prevents this Court from considering the "very best evidence" of Defendant' claim of s independent creation. In addition, Defendant' own expert admits that the "re-created s Aparthenonia" is not identical to the original Aparthenonia. These undisputed facts cast doubt on Defendant' claim of independent creation. s Second, Defendant bears the

burden of demonstrating that Plaintiffs have failed to establish probative copying through expert evidence of striking similarities between Aparthenonia and Plaintiffs' composition (Bust Dat Groove). However, Defendant does not claim that Plaintiffs have failed to present evidence of probative copying but, rather, argues that Defendant' alleged s evidence of independent creation is more compelling than Plaintiffs' evidence of striking similarities. This is insufficient to render summary judgment in Defendant' favor. s

Finally, under controlling Second Circuit law, a jury, not this Court, must resolve the competing expert evidence in this case. STATEMENT OF FACTS A. The Court' Order s On November 3, 2006, the parties appeared before this Court for oral argument on Defendant' MSJ. During oral argument the Court recognized that the competing expert s reports in this case precluded summary judgment in Defendant' favor: s "Ms. Ahrens: ... To avoid dismissal, plaintiffs must demonstrate that the two works are so strikingly similar that all of the evidence, taken as a whole, precludes any reasonable possibility that BT independently created his beat... Your Honor, this is not a battle of the experts ­ As used herein the term "precise equipment" refers to the: (1) G3 Apple computer; and (2) Propellerhead Reason 1.0 music software embodied in the G3 Apple computer' s hardware, Defendant claims he used when he allegedly created the orginal Aparthenonia.
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The Court: The Second Circuit' opinion in Gates at least implies that s once there is a conflict in expert testimony on striking similarity, it' s difficult, if not impossible, to grant summary judgment... " Exhibit A, Transcript of Nov. 3, 2006 Oral Argument, at pg.3. Instead of denying Defendant' MSJ, the Court, without application from either s party, took the extraordinary step of re-opening discovery to allow Defendant to produce a re-creation of the original Aparthenonia for the Court' consideration. Id. at pg. 6-7. s The Court believed that a re-creation of Aparthenonia by Defendant, utilizing the precise equipment he allegedly used to create the original Aparthenonia, would be the very best evidence of independent creation: "The Court: ... When I look at all of this, isn' the real key what t a re-enactment of the creation of Aparthenonia would show since the equipment ­ the parties agree that the equipment, the precise equipment that Transeau said he used to create it [Aparthenonia] in the first place still exists... wouldn' the actual recreation of t Aparthenonia be, to coin a term, the very best evidence that could be offered?" (emphasis added). Id. at pgs. 7-8. Over Plaintiffs' objection, the Court ordered Defendant to produce additional evidence in support of Defendant' MSJ by: (i) recreating Aparthenonia s utilizing the "precise equipment" that Defendant claimed he used to create the original Aparthenonia; and (ii) submitting a fast fourier transform analysis ("FFT analysis") of the recreated Aparthenonia. Id. at pg. 6-8, 19-21. B. Defendant' additional evidence s Defendant admits that he failed to conduct a recreation of Aparthenonia utilizing the "precise equipment" he allegedly used to create the original Aparthenonia. Exhibit B, Declaration of Brain Transeau (dated November 27, 2006), ¶5. The "precise equipment" was not unavailable to Defendant at the time he attempted his recreation of Aparthenonia

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and Defendant does not offer any plausible reason2 why he failed to use the "precise equipment" as required by this Court. On December 1, 2006, Defendant' FFT expert, Dr. Richard Boulanger ("Dr. s Boulanger") submitted a supplemental declaration in which he admits that the waveform and spectral data of the recreated Aparthenonia and the original Aparthenonia are different and do not match perfectly. Declaration, ¶3, ¶7. C. Chin' Declaration s On January 23, 2007, Plaintiffs' attorney submitted a supplemental declaration introducing Plaintiffs' expert' rebuttal report and opposing the additional evidence s submitted by Defendant. Exhibit D, Chin' Decl., et. seq. s Chin' Decl. contains s Exhibit C, Dr. Boulanger' Supplemental s

statements of fact based on Chin' personal knowledge and admissible evidence s previously submitted in this case. Attached to Chin' Decl is the supplemental report of s

Plaintiffs' drum expert, Matthew Ritter ("Ritter"), containing his analysis of the two recreated versions of Aparthenonia. Id. at exhibit 15 attached thereto. Ritter determined that the recreated Aparthenonias did not contain certain musical elements that were contained in the original Aparthenonia. Id. at attached exhibit 15, ¶2-4.

Defendant speciously states that he did not use the precise equipment in his recreation because it was at Defendant' attorney' office, in San Francisco, California, "awaiting" s s inspection by Plaintiffs. Exhibit B, ¶5.
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LEGAL ARGUMENT POINT I LEGAL STANDARD A. Local Rule 1.10 and Fed.R.Civ.P. 11 governs Chin' Declaration s Rule 56(e) states, in pertinent part, that "supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Fed.R.Civ.P. 56(e). Chin' Decl. is not an affidavit and Chin s will not, and is not expected to, testify at the trial of this case. Therefore, Defendant' s reliance on Fed.R.Civ.P. 56(e), with respect to the admissibility of Chin' Decl., is s misplaced. Local Rule 1.10 provides for acceptable substitutes for affidavits and states, in pertinent part, that: "In situations in which any local rule provides for an affidavit or a verified statement, the following are acceptable substitutes:... (b) if accepted by the court as a substitute for an affidavit or a verified statement, (1) a statement signed by an attorney or by a party not represented by an attorney pursuant to Federal Rules of Civil Procedure 11... " U.S.Dist.Ct.Rules S&E.D.N.Y., Civil Rule 1.10. states, in pertinent part, that: "(a) Signature. Every pleading, written motion, and other paper shall be signed by at least one attorney of record in the attorney's individual name... (b)... By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney... is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances... (3) the allegations and other factual contentions have evidentiary support... " (emphasis added). Fed.R.Civ.P. 11(a), (b)(3). Fed.R.Civ.P. 11

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Therefore, Chin' Decl. is proper, and may be considered by this Court, because it s contains statements of fact based on: (i) Chin' personal knowledge; and (ii) the s admissible evidence presented in this case. B. Defendant' burden of proof on summary judgment s In this case, Defendant bears the burden of demonstrating the absence of a dispute of material fact and his entitlement to judgment in his favor as a matter of law. Vermont Teddy Bear Company, Inc. v. 1-800 Beargram Company, 373 F.3d 241, 244 (2d Cir. 2004). In a copyright infringement action, "[T]he materiality of disputed facts is Vargas v. Pfizer, 418 F.Supp.2d 369, 371

determined by... the Copyright Act."

(S.D.N.Y. 2005). To meet his burden on summary judgment, Defendant must show that Plaintiffs have failed to put forth evidence necessary to support their copyright infringement claims (i.e. evidence of striking similarity between Bust Dat Groove and Aparthenonia). Repp v. Weber, 132 F.3d 882, 890 (2d Cir. 1997) ("... the defendants may satisfy their burden under Rule 56 by showing ` hat there is an absence of evidence t to support [an essential element] of the nonmoving party's case."). In assessing whether or not a material fact is in dispute, the Court must believe the evidence presented by Plaintiffs and must draw all reasonable inferences in Plaintiffs' favor. Tufenkian

Import/Export Ventures, Inc. v. Einstein Moojy, Inc., 338 F.3d 127, 131 (2d Cir. 2003). POINT II CHIN' DECLARATION SHOULD BE CONSIDERED BY THIS COURT S A. Chin' Decl. must be assessed under Local Rule 1.10 and Fed.R.Civ.P. 11 s "Chin' Decl." is a statement signed by Plaintiffs'attorney submitted for purposes s of identifying facts and admissible evidence supporting Plaintiffs' opposition to Defendant' additional evidence. Such "papers" may be considered by this Court s

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provided that the statements contained therein are based on personal knowledge or contain facts which are supported by evidence presented in this action. See,

U.S.Dist.Ct.Rules S&E.D.N.Y., Civil Rule 1.10. and Fed.R.Civ.P. 11. In addition, an attorney' affidavit may present admissible evidence where said evidence relates to items s in the case, such as items in the record or items produced in discovery. See, 11 Moore' s Federal Practice, §56.14(1)I (Matthew Bender 3d ed. 2006). B. Chin' Decl. contains facts based on personal knowledge and admissible s evidence Paragraphs 1-3 and 6 of Chin' Decl. contain statements of fact which any s attorney involved in this case would have personal knowledge. Exhibit D, ¶1 ("I am an attorney licensed to practice law in the courts of the state of New York and in this District... "); ¶2 ("On November 3, 2006 this Court entered an order allowing Defendant BT to conduct a re- creation, and subsequent expert analysis, of the infringing musical composition in this action... "); ¶3 ("On December 1, 2006, Defendant BT submitted, inter alai, the declaration of Brian Transeau... and the supplemental declaration of Dr. Richard Boulanger... "); ¶6 (Attached hereto as Plaintiffs' Exhibit 15 is a true and correct copy of the supplemental expert declaration of Matthew Ritter (Plaintiffs'drum expert)... "). Paragraphs 4-5 of Chin' Decl. contain facts which are based on the admissible s evidence submitted in this case. Paragraph 4 of Chin' Decl. states, in pertinent part, that s "... Defendant BT did not utilize the same materials (i.e. the G3 Apple computer and the Propellerhead Reason music software contained therein) to recreate Aparthenonia that he allegedly used to create the original Aparthenonia... " Id. at ¶4. This factual contention comes directly from Defendant' own declaration submitted as evidence in this case: s

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"5. I used the following hardware and software to recreate Aparthenonia: (a) an Apple G4 computer, which is the closest computer I have to the G3 I used to make the original Aparthenonia (The G3 computer on which I originally created Aparthenonia remains at the offices of my attorneys for inspection by Plaintiffs. I have not altered that computer in any way since locating it and providing it to my attorneys in August, 2006); (b) Propellerhead Reason 1.0, the same version of the software that I used to create the original Aparthenonia; and (c) Logic Audio software, which I also used to create the original Aparthenonia." (emphasis added). Exhibit B, ¶5. Paragraph 4 also states that "... (ii) the re-created Aparthenonia is not identical to the original Aparthenonia." Exhibit D, at ¶4. This factual contention comes directly from Defendant' expert' declaration submitted as evidence in this case: s s "7... the waveform and spectral data of the recreated Aparthenonia are not a perfect match to that of the original Aparthenonia... these two tracks [i.e. recreated Aparthenonia and the original Aparthenonia] have slightly different waveform and spectral data... " Exhibit C, at ¶7. Paragraph 5 of Chin' Decl. states, in pertinent part, that "... Boulanger does not s mention that he was presented with or reviewed a sound, in the re-created Aparthenonia, which was a cross between a snare and tom-tom (i.e. ghost note)... Defendant BT' s declaration does [not] mention... that he "re-created" [the] ghost notes in the new Aparthenonia." Exhibit D, at ¶5. The Court can verify the accuracy of this statement simply by looking at the supplemental declarations of Defendant and Defendant' expert. s See, Exhibits B and C. Paragraph 7 of Chin' Decl. quotes the statements contained in Ritter' s s supplemental declaration, which has been submitted as evidence in this case. Exhibit D,

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¶7 and exhibit 15, at ¶3 attached thereto.

Paragraph 8 of Chin' Decl. restates the s

admissible evidence contained in paragraphs 4-5 and 7 of Chin' Decl 3. Id. at ¶8. s C. There is no reason to strike Chin' entire declaration s Defendant' argument that "Mr. Chin [declaration] mischaracterizes, incorrectly s summarizes, and draws biased inferences from evidence contained in witnesses' declarations" pertains to the weight and credibility of Chin' Decl. not to its s admissibility. See, Memorandum of Law in Support of Motion to Strike, at pg. 3. As a result, this Court can assess the credibility of the statements made in Chin' Decl., and s what weight should be afforded to such evidence, without striking Chin' entire s declaration. Zakre v. Norddeutsche Landesbank Girozentrale, 396 F.Supp. 483, 506 (S.D.N.Y. 2005) (motion to strike affidavit denied where objections pertained to weight and credibility not admissibility); Morris v. Northrop Grumman Corp., 37 F.Supp.2d 556, 569 (E.D.N.Y. 1999) (motion to strike denied where court could consider those portions of the challenged affidavits that contain relevant admissible evidence). In any event, this Court may strike those portions of Chin' Decl., if any, which it believes is either s unsupported by admissible evidence or not based on Plaintiffs' attorney' personal s knowledge. DeSimone v. J.P. Morgan/Chase Bank, No. 02 Civ. 7039 (RPP), 2004 WL 2978011, at *4 (S.D.N.Y. Dec. 22, 2004) ("... any inappropriate portions of Plaintiff's submissions have been disregarded, and this Court' analysis relies upon admissible s evidence.") see also Doe v. The National Board of Podiatric Medical Examiners, No. 03 Civ 4034 (RWS), 2004 WL 912599, at *4 (S.D.N.Y. Apr. 29, 2004) citing U.S. v. Private

Plaintiffs concede that paragraph 9 of Chin' Decl. contains argument and should not s be considered by the Court.
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Sanitation Industry Association of Nassau/Suffolk, Inc., 44 F.3d 1082, 1084 (2d Cir. 1995). POINT III DEFENDANT' ADDITIONAL EVIDENCE CASTS DOUBT S ON HIS CLAIM OF INDEPENDENT CREATION A. Defendant failed to follow the Court' Order s Defendant was required to recreate Aparthenonia by utilizing the "precise equipment" Defendant claimed he used to create the original Aparthenonia. Exhibit A, at pg. 6-8, 19-21. It is undisputed that Defendant did not use the "precise equipment" in his attempt to recreate Aparthenonia. Exhibit B, at ¶5. Defendant' failure to use this s "precise equipment" in his attempt to recreate Aparthenonia not only violates this Court' s Order but also runs afoul of the Federal Rules of Evidence. Rule 1002 of the Federal Rules of Evidence requires a party who would prove the "content" of a writing, recording, or photograph must introduce the thing itself-- the ` riginal." FRE 1002. Defendant failed to produce the original master recording of o Aparthenonia in this case; therefore, the only way this Court can determine if Defendant independently created the original Aparthenonia is if Defendant recreated the original Aparthenonia by utilizing the "precise equipment" that Defendant claimed he used to create the original. Defendant' failure to utilize the "precise equipment" in his attempt s to recreate Aparthenonia prevents this Court from considering the "very best evidence" of whether or not Defendant independently created the original Aparthenonia. B. The recreated Aparthenonia is not identical to the original Aparthenonia It should be noted that Defendant submitted not one but two versions of his recreated Aparthenonia (identified as "NU Aparthenonia-W/TC" and "BT Nu Aparth.").

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Exhibit D, at attached exhibit 15, ¶3; Supplemental Declaration of Julie A. Ahrens, at "exhibit Z" attached thereto. It is unclear why Defendant produced two versions of what he claims to be recreations of the original Aparthenonia or which version this Court is supposed to consider. In any event, it is clear that neither version is a recreation of the original Aparthenonia. Ritter analyzed both recreated versions and determined that: (i) neither version contained the "ghost notes" that appear in the original Aparthenonia; and (ii) the version titled "BT NU Aparth" was "missing one of the open hi-hat sounds and the shifting of a bass drum note that occurs in the 4th measure of the original Aparthenonia." Exhibit D at exhibit 15, ¶3 attached thereto. Recognizing the differences between the recreated versions and the original Aparthenonia, Ritter posed a very interesting question that neither Defendant nor his expert has answered: "If the same person created all three versions of "Aparthenonia" (the original, as well as the two recreations), then I am unclear as to why these differences of nuance would appear. It seems to me that the creator of the original "Aparthenonia" would know and be able to hear the details of his own work and would thus be able to recreate it exactly." Id. at exhibit 15, ¶4 attached thereto. Dr. Boulanger did not conduct an FFT analysis of both recreated versions of Aparthenonia, but instead only analyzed the version titled "NU Aparthenonia-W/TC." Exhibit C, ¶3. Dr. Boulanger admits that "NU Aparthenonia-W/TC" is not identical to the original Aparthenonia: "... I conclude that the recreated Aparthenonia is an exceptionally close match to the original Aparthenonia... I found them [the recreated and original Aparthenonia] to be exceptionally close matches... the waveform and spectral data of the recreated

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Aparthenonia are not a perfect match to that of the original Aparthenonia.." Id. at ¶3, 6-7. In an effort to explain away Defendant' inability to recreate a composition s that was identical to the original Aparthenonia, Dr. Boulanger states that "it is essentially impossible to create two separate audio tracks that would produce perfectly matching waveform and spectral data unless they were digitally copied." Id. at ¶7. This statement is at odds with Defendant' previous assertion that Aparthenonia could not have been s created by sampling and digitally editing/manipulating the constituent musical elements of Bust Dat Groove because Dr. Boulanger' prior FFT analysis showed that no single s drum strike in Aparthenonia was an exact match of a single drum strike in Bust Dat Groove. See, Defendant' Memorandum of Law in Support of Defendant' MSJ, pg. 8 s s and the attached exhibit F, pgs. 2-3. If the drum sounds contained in the recreated

Aparthenonia came from the exact same music software Defendant claims he used to create the drum sounds in the original Aparthenonia (i.e. Propellerhead Reason version 1.0) then why was Dr. Boulanger unable to find identical matches of these drum sounds in his FFT analysis of the recreated Aparthenonia and the original Aparthenonia? According to Dr. Boulanger, the absence of identical drum sounds between Bust Dat Groove and the original Aparthenonia proves that the original Aparthenonia was not created by using drum sounds from Bust Dat Groove. If this is true, then the absence of identical drum sounds between the recreated Aparthenonia and the original Aparthenonia must prove that the music software Defendant used to produce the drum sounds in the recreated Aparthenonia was not the same music software Defendant allegedly used to create the drums sounds in the original Aparthenonia. In short, if Defendant used the exact same music software to create all three versions of Aparthenonia (i.e. the original

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and the two recreations) then Dr. Boulanger should have found identical drums sounds in all three versions. The fact that Dr. Boulanger was unable to find anything other than "exceptionally close matches" in the drum sounds of the recreated Aparthenonia and the original Aparthenonia makes his report no more compelling than Dr. Smith' 4 conclusion s that the frequency spectra of the drum strikes contained in Aparthenonia and Bust Dat Groove are so close as to provide "extremely strong evidence in favor of Plaintiffs' assertion that Aparthenonia is based on a digitally edited and/or manipulated copy of Funky Drummer [i.e. Bust Dat Groove]." See, Plaintiffs' Memorandum of Law in Opposition to Defendant' MSJ, at exhibit 11, pgs. 4-5. s Defendant' additional evidence casts doubt on his claim of independent creation. s POINT IV REPP V. WEBER IS DIRECTLY CONTROLLING IN THIS CASE AND MUST BE FOLLOWED BY THIS COURT Conspicuously absent from Defendant' memorandum of law in support of his s Motion is any citation to the Second Circuit' decision in Repp v. Weber. This decision is s directly controlling in this action and must be applied by this Court. A. Three governing legal principles of Repp v. Weber The Second Circuit' decision in Repp v. Weber establishes three very important s legal principles directly applicable to this action. First, a plaintiff in a copyright

infringement action has the initial burden of proving "probative copying" either through access or through the existence of striking similarities. Repp v. Weber, 132 F.3d 882, 889 fn. 1 (2d Cir. 1997). Second, on a motion for summary judgment the court must "... assume the truth of the non-movant's evidence" and "resolve all ambiguities and draw

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Dr. Smith is Plaintiffs' FFT expert. 13

all inferences in favor of the non-moving party." Id. at 889-890. Finally, and most importantly, where a plaintiff establishes a prima facie case of probative copying evidence of independent creation does not warrant summary judgment in favor of the defendant but, rather, requires a jury to make the final call. Id. at 891. ("Whether the

evidence of independent creation here is sufficient to rebut the prima facie case established in this action is a question for the factfinder... ") B. Plaintiffs need not rebut Defendant' evidence of independent creation s On Defendant' MSJ, the question this Court must ask is not whether Plaintiffs s have presented evidence rebutting Defendant' evidence of independent creation, but s rather have Plaintiffs submitted evidence of striking similarity (i.e. probative copying). The Second Circuit correctly admonished the district court in Repp v. Weber for rendering its decision based on the former analysis rather than the latter. Id. at 891.

("... the district court found on the motion for summary judgment that even if plaintiffs could prove access and probative similarity, they have not submitted any evidence to controvert the defendants' proof of independent creation...[T]he district court apparently was of the opinion that some direct evidence was required to contradict their version of the events surrounding the beginnings of "Phantom Song."). POINT V THE COMPETING EXPERT EVIDENCE MUST BE RESOLVED BY A JURY It is axiomatic that on a motion for summary judgment "... the court cannot try issues of fact; it can only determine whether there are issues to be tried." Levine v. McDonald' Corp., 735 F.Supp. 92, 95 (S.D.N.Y. 1990) citing Donahue v. Windsor s Locks Board of Fire Commissioners, 834 F.2d 54, 58 (2d Cir. 1987). "Clearly, the duty of a court on a motion for summary judgment is to determine whether there are any

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genuine issues of material fact to be resolved by trial and not to decide factual issues." Repp v. Weber, 132 F.3d at 890. By requiring Defendant to submit additional, post discovery, expert evidence on the issue of independent creation before ruling on Defendant' MSJ the Court is seeking s to resolve a factual dispute that must be determined by a jury. When faced with the kind of competing expert evidence that has been presented in this case, a jury, not the Court, should make the final call. Repp v. Webber, 132 F.3d at 890 (summary judgment reversed where district court erroneously made factual determination in favor of defendant on the issue of striking similarity where there was competing expert evidence); s Gaste v. Kaiserman, 863 F.2d 1061, 1067-68 (2d Cir. 1988) (affirming district court' decision to allow jury to determine if plaintiff' proof of striking similarity "preclude[d] s any reasonable possibility of independent creation"). Plaintiffs three experts have demonstrated that Aparthenonia is strikingly similar, if not identical, to Bust Dat Groove. Defendant' additional expert evidence of s

independent creation is significantly flawed, if not entirely inadmissible. A jury, not the Court, should consider all of the expert evidence in this case and determine whether the proof of striking similarity precludes any reasonable possibility of independent creation. CONCLUSION For the reasons stated herein, Defendants'Motion should be denied in its entirety. Dated: New York, New York March 29, 2007 Respectfully submitted, s/ Paul Chin
Paul A. Chin, Esq. (PC 9656) LAW OFFICES OF PAUL A. CHIN 233 Broadway, 5th Floor New York, NY 10279

[phone] Attorneys for Plaintiffs 15